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Here’s the most important line from Melania Trump’s Oct. 17 interview with CNN’s Anderson Cooper:
“Sometimes I say I have two boys at home—I have my young son and I have my husband.”
One of them is running for president of the United States. He loves winning. And he loves to blame anyone else—everyone else—when he isn’t.
Two months ago, polls following Trump’s verbal war with a Gold Star family showed him losing the election badly. As I wrote at the time, his response was to complain that the election system was rigged. But as his poll numbers rebounded in September, Trump’s cries of “rigging” became more subdued.
After Trump’s disastrous first debate and the reports of his own vile behavior toward women, his poll numbers plummeted again. And so, once again, Trump rails against a system that, he claims, must be rigged against him. Otherwise he’d be winning.
He pursued a similar strategy when it looked like might not have enough delegates to win the Republican nomination. (Remember when he said there would be riots if he didn’t get it?) When a process makes him the winner, he embraces it; when he fears failure, he denounces it.
This time, Trump has merged his baseless election-rigging rhetoric with his ongoing assault on freedom of the press. For Trump, scorched earth apparently includes destroying two essential pillars of American democracy: a free press and public confidence in the election process itself.
A recent Politico poll suggests that Trump’s message is getting through: 41 percent of voters think that the November election could be “stolen” from him.
The Relentless Assault on the Press
During his presidential campaign, Donald Trump has threatened to sue journalists and the media more than a dozen times. Here’s a small sample:
— On April 27, 2016, Pulitzer Prize-winning author David Cay Johnston later tweeted, Trump personally called and threatened to sue him “if he doesn’t like what I report” in discussing Johnston’s book about Trump.
— On May 18, 2016, Trump told reporters for The Washington Post: “I will be bringing more libel suits … maybe against you folks.”
— On July 20, 2016, The New Yorker reported that Trump had threatened to sue his former ghostwriter Tony Schwartz for supposedly “defamatory statements” Schwartz had made to Jane Mayer about the book he “co-wrote” with Trump, The Art of the Deal.
— When The New York Times reported on women claiming that they had been victims of Trump’s sexual assaults, he threatened to sue.
Why hasn’t Trump followed through? After all, he’s not reluctant to litigate. In June, USA Today reported that Trump and his businesses have been involved in more than 3,500 lawsuits.
And Trump has plenty of advisers with J.D.s—including Kellyanne Conway (George Washington University, ’92), who replaced Paul Manafort (Georgetown ’74) as campaign manager, senior adviser Boris Epshteyn (Georgetown ’07), and ubiquitous surrogate Kayleigh McEnany (Harvard ’16), among others. So what’s holding him back?
In mid-September, Trump tweeted, “My lawyers want to sue the failing @nytimes so badly for irresponsible intent. I said no (for now), but they are watching. Really disgusting.”
As Trump himself might say in response to that tweet, “I don’t think so.”
A more plausible reason is the restraining influence of Trump’s outside attorneys. Although Trump and his surrogates with law degrees can say whatever they want, litigators marching into a courtroom cannot. A trial attorney’s professional responsibilities transcend the whims of a client. Trump may think that he’s beyond the rules applying to everyone else. But his attorneys know they are bound by court requirements governing all lawyers’ conduct. And they risk serious sanctions for violating them.
A Lawyer’s Duty
One of Trump’s outside attorneys, Marc Kasowitz, signed the recent demand letters to the Times about Trump’s tax returns and sex scandals. Attorneys can send letters threatening lots of things. But when a controversy moves into a courtroom, it’s a whole new ball game.
Kasowitz is an accomplished and respected trial lawyer. Appropriately, he represents clients zealously—and Donald Trump is no exception. Even so, when it comes to lawsuits, even the best attorneys face two immutable constraints: the facts and the law. Most states have rules embodying the principles of Federal Rule of Civil Procedure 11. It provides that by signing a court filing, an attorney certifies that “after reasonable inquiry” that there is factual and legal support for the assertions it contains.
For Trump’s latest threats against the Times, those obstacles are so great that noted attorney Theodore Boutrous Jr. called Kasowitz’s latest demand letter a “stunt.” Boutrous suggests that Trump’s real aim is to chill aggressive reporting into his activities.
Rules? What Rules?
The legal restrictions governing the attorneys who would file a Trump lawsuit also explain his February outburst:
“I’m going to open up our libel laws so when they write purposely negative and horrible and false articles, we can sue them and win lots of money. … We’re going to open up those libel laws. So when The New York Times writes a hit piece which is a total disgrace or when The Washington Post, which is there for other reasons, writes a hit piece, we can sue them and win money instead of having no chance of winning because they’re totally protected.”
At one level, such bombast reveals Trump’s ignorance. Libel is a state law tort constrained by First Amendment principles. A president’s views don’t figure in its application. At another level, Trump’s comments reveal a deeper danger.
Conservative law professor Ilya Somin of the Antonin Scalia Law School at George Mason University notes, “There are very few serious constitutional thinkers who believe public figures should be able to use libel as indiscriminately as Trump seems to think they should. He poses a serious threat to the press and the First Amendment.”
Baseless Conspiracy Theories
In his latest assault on the press, Trump asserts that the media is part of a larger conspiracy to rig the election. It extends, Trump claims, to rampant voter fraud that could rob him of victory. Vice presidential candidate Mike Pence tried to explain away Trump’s incendiary stance as referring to only what he claims to be media bias.
But in his tweets, Trump himself set Pence and everyone else straight about his meaning:
“The election is absolutely being rigged by the dishonest and distorted media pushing Crooked Hillary—but also at many polling places—SAD.”
And: “Of course there is large-scale voter fraud happening on and before election day. Why do Republican leaders deny what is going on? So naive!”
The evidence refutes Trump’s baseless claims of voter fraud. As I noted previously, professor Justin Levitt at Loyola Law School-Los Angeles tracked all claims of alleged voter ID fraud and found a grand total of 31 credible allegations out of more than 1 billion ballots cast. But facts have never mattered to a Republican presidential campaign that has become the worst reality TV show ever.
As Benjamin Franklin left Independence Hall following the Constitutional Convention of 1787, a woman approached him.
“Well, Doctor, what have we got,” she asked, “a republic or a monarchy?”
“A republic,” Franklin answered, “if you can keep it.”
On Nov. 8, we’ll find out.